YouTube: Dershowitz says charges against Trump are ‘outside’ of impeachment offenses

I’ve seen several comments in the Forum that misrepresent Dershowitz’s remarks in the Senate impeachment trial. I provide the video for the record, then, but even more for Dershowitz’s remarks themselves which I regard as excellent and informative.

Dershowitz says little that other constitutional scholars would disagree with. There is one topic, however, that has drawn some criticism. That is Dershowitz’s assertion that impeachment requires a crime or criminal-like conduct.

This particular assertion is unusual in that it represents Dershowitz’s own contribution to scholarship on the subject of the nature of impeachable offenses. The idea has generated some heat, but it is really a triumph of common sense.

A crime, after all, is doing something wrong, something that shouldn’t be done. There is no shortage of human conduct we commonly describe as wrong even though, technically, it is quite legal. Sometimes we actually say about the doer of a bad deed, “It’s a crime what he did,” even when we know there is no statute the deed violated.

Dershowitz gives us a different perspective on such cases: When the deed is not a bad one, then the doer has done nothing wrong. The doer has committed no crime, nor has he committed any criminal-like behavior.

Thus, Dershowitz says in the video: “Purely non-criminal conduct, including abuse of power and obstruction of Congress are outside the range of impeachable offenses. That is the key argument I am presenting today.”

Makes perfect sense. You wouldn’t throw a boy scout in jail for helping a little old lady cross the street, would you?

25 thoughts on “YouTube: Dershowitz says charges against Trump are ‘outside’ of impeachment offenses

  1. @Roberts

    Dershowitz is the sort of fellow who gives lawyers a bad name. Just ask anybody of a certain age who remembers the OJ Simpson trial. Then there is this . . .

    https://www.thedailybeast.com/jeffrey-epstein-pays-off-woman-who-said-he-directed-her-to-have-sex-with-alan-dershowitz

    But, leaving aside is past clients and his willingness to do or say anything to advance their cause, his argument that there must be a crime for there to be an impeachment is one that most legal analysts find laughable and for good reason – the Constitution. It is NOT “High crimes” written there. It is “High crimes and misdemeanors.” In the 18th century, the word “misdemeanors” was understood very literally to mean “bad behavior.” Hamilton made it even more explicit that impeachment was there to deal with political crimes. His words on the subject of the sort of person Impeachment was there for are quite frankly amazing. It is as if he had Trump in mind . . .

    “When a man unprincipled in private life[,] desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.'”

    Liked by 4 people

    1. RE: “his argument that there must be a crime for there to be an impeachment is one that most legal analysts find laughable and for good reason…”

      That’s debatable. If you pay attention to the video, you’ll see that Dershowitz derives his view from legal scholars of the past who made exactly the same point he does, and argued it in impeachment cases.

      RE: “In the 18th century, the word ‘misdemeanors’ was understood very literally to mean ‘bad behavior.'”

      I take this to mean that you actually agree with Dershowitz that to be impeached a president must do something wrong.

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      1. @Roberts

        Of course, he must do something “wrong.” That is what “bad behavior” means. What “wrong” means is left entirely to the Congress. It need not be in the statute books as a crime. However, in this case, the acts that are cited in Article One of the Impeachment ARE in the statute books as crimes.

        1. Soliciting help for a campaign from a foreign actor is a crime.
        2. Demanding a “favor” before performing an official action is a crime.
        3. Conspiring with others to perpetrate the crimes above is a crime.
        4. Directing and conspiring with others to cover up crimes is a crime.
        5. It is illegal for the Executive to fail to disburse approved funds for personal reasons.

        Liked by 2 people

      2. RE: “However, in this case, the acts that are cited in Article One of the Impeachment ARE in the statute books as crimes.”

        More importantly, the articles do not cite the acts you list as statute violations. They don’t identify the statutes the acts violate.

        I don’t know why, but I can guess. None of the acts meets the relevant statutory test to be cited as a violation of the law. The prosecution might have had a strong case had they made the assertion, but they didn’t make it. As a result, your point is actually moot.

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        1. @Roberts

          We are talking about an impeachment – a process where a President has shown himself to be unworthy of the trust and high office given to him can be removed for the good of the nation. This is NOT a criminal matter where, as Trump supporters such as Leningrad Lindsay have argued, he might be found “not guilty” due to diminished capacity. Or because he really, really thought – as he has said – that as President he can do anything.

          You really ought to understand that this is not actually a criminal trial since the Republicans seem to have the intent and maybe the ability to keep evidence out and witnesses from testifying. You do know that trials are where evidence is presented, witnesses testify under oath and the Judge instructs the jury that statements by defense attorneys is not evidence? Right?

          Liked by 1 person

        2. RE: “We are talking about an impeachment – a process where a President has shown himself to be unworthy of the trust and high office given to him can be removed for the good of the nation.”

          Yes, we are talking about an impeachment. I do not assume, as I think you do that this president has shown himself to be unworthy of the office he holds. The burden is on you to show that he is unworthy.

          But so far your efforts reveal nothing but confusion. You argue that the president must be removed because he is guilty of un-alleged crimes, but at the same time you argue that he doesn’t need to commit real crimes to be removed from office. The two positions are incompatible on their face.

          When you figure it out, let us know.

          Like

          1. @Roberts

            I will never be able to figure out something – your argle bargle.

            For example, this gem . . . “You argue that the president must be removed because he is guilty of un-alleged crimes, but at the same time you argue that he doesn’t need to commit real crimes to be removed from office. The two positions are incompatible on their face.”

            That makes zero sense. There is nothing – even in your paraphrase – that is “incompatible on their face.”

            I have argued that ‘High crimes and misdemeanors” are not defined and it is within the scope of Congress to interpret them. It is. I have also noted that in this case the “High crimes and misdemeanors” from Article One happen to coincide with statutory crimes. They do.

            Article Two – Obstruction of Congress – similar to articles against Nixon and Clinton does not involve a statutory crime. But the House considers it a “High Crime and Misdemeanor.”

            Liked by 1 person

    2. Sadly, Dershbag would have won OJ even if he’d been found ‘guilty’. The evidence from the mansion would have been tossed on appeal, and there was damned little aside from that. Had lunch with two circuit court judges shortly after the arrest. Two judges, and maybe three lawyers in total agreement that the warrantless search was a violation of OJ’s rights.
      The fact that the 4 stooges claimed exigent circumstances concerning the fact that OJ may have been a victim and lay dying just beyond the fence after 2 hours of deliberation almost caused one of my lunch companions to go apoplectic.
      Dershbag lucked out to be among better lawyers than he on that one.

      Liked by 2 people

  2. Dershowitz’s opinion is just that: an opinion. And opinions are like assholes. Every body has once and sometimes you got stuck in an elevator with an exceptionally loud and smelly one. This, in MY opinion, is one of those times.

    I hope he got a real big check from Trump for this one, for whatever credibility he had appears to be washed away. -IMHO

    Liked by 1 person

  3. “Purely non-criminal conduct, including abuse of power and obstruction of Congress are outside the range of impeachable offenses. That is the key argument I am presenting today.”

    Congress has oversight on the Executive Branch. An elected, or appointed official as in the case of a judge, are charged with the public trust. If that trust is broken by abuse of that office for personal or political gain, then without the power of impeachment, the citizens are at the mercy of that officeholder.

    The approval process by the electorate is not limited to just elections. If it were, then there is no protection in the cases of unrestrained abuses. The Constitution purposefully provides a remedy.

    In addition, without being able to curtail obstruction of Congress, that makes oversight enforcement pointless.

    The founders included the broad categories of High Crimes just for that reason.

    IMHO

    Liked by 1 person

    1. RE: “Congress has oversight on the Executive Branch.”

      Yes it does, but only in the limited sense that a co-equal branch of government can have oversight of another co-equal branch. The alternative is to assume that Congress is the real king of America, the actual monarch to which the presidency is just a subject.

      RE: “The founders included the broad categories of High Crimes just for that reason.”

      That doesn’t make a lot of sense, but even if it were true, a president would still have to do wrong to merit impeachment. Do you think oversight authority is sufficient for Congress to remove a president who hasn’t done something wrong (leaving aside the question as it applies to Trump)?

      Like

      1. No reason to remove a president who hasn’t done anything wrong, so that is a bogus position.

        Withholding Congressionally approved military aid for an ally at war to start investigating a political rival and his party is wrong. A blatant abuse of power. Definitely a High Crime.

        The defense has acknowledged that even if he did that, it is still not “High” enough. Makes one wonder what would constitute an abuse of presidential power. Despite what Trump asserted, he can’t do as he pleases.

        No oversight makes the president a monarch. Oversight balances the powers.

        Liked by 2 people

      2. RE: “Withholding Congressionally approved military aid for an ally at war to start investigating a political rival and his party is wrong.”

        Then you agree (with Dershowitz) that the president must do something wrong to be removed from office. Now, to the specifics:

        a) Show us how the “hold” on military aid was wrong.

        b) Show us how you know the purpose of withholding the aid was solely, and to the exclusion of all other reasons, because the president wanted political gain.

        I submit that you can’t do either of these things.

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  4. The obstruction of Congress charge could have been debunked by a child, but Mr Dershowitz did a good job proving that both articles are flimsy to the point of being little more than Presidential harassment. The fact that he is a Democrat means he is the perfect persuader for “moderate” GOPsters like Mses Collins and Murkowski.

    The American people do not deserve the colossal hoax that House Dems have foisted upon them — and neither does the Senate. Accordingly, they need to dispose of it without unnecessary delays.

    Adam Schiff is pure evil and he has inflicted more harm on America than anyone since Osama bin Laden. Ultimately, he will pay the price for that.

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  5. It amazes me that there are so many constitutional scholars in this forum. What is even more amazing is how easily some can tell everyone else what constitutes a high crime or misdemeanor under the constitution and then throws phony claims of bribery and extortion around like penny candy. If Trump is guilty of either by the the left then every politician that imposes sanctions on another country is equally as guilty, for that action definitely constitutes a quid pro quo. Sanctions are extortion.

    Like

    1. @Bobr

      There is nothing “phony” about pointing out that Trump’s impeached actions are in violation of several statutes including those against seeking foreign help for a campaign and demanding “favors” before performing official duties.

      There is nothing inherently criminal in a “quid pro quo.” In fact, that is the essence of any deal. The question of legality hinges on what is offered and what is demanded. It is one thing to demand Iran to give up its nuclear program. It is another to demand than a nation instigate and announce an investigation into a political rival of the President.

      The defense of Trump’s actions can only be that what was demanded was in the national interests of the United States. That the demand that such an announcement about Joe Biden was in our national interest is absurd on its face. It was demanded because it would help Trump kneecap his strongest political rival. Period.

      Liked by 1 person

      1. Your problem is proving that anything Trump did was exclusively to benefit his campaign and nothing else like being part of an overall anti-corruption effort. You can’t do that unless you have it in writing or on tape that is his sole intent. It is not like getting cash in your hand as a benefit that can be proven. I said a long time ago that you had better have a provable argument based on law or this would go nowhere. Now here we are.

        Like

  6. That’s his opinion…legal or personal.

    Should there be a way to obtain the opinion of the SCOTUS? It could very likely come out in 5-4 split.

    Like

    1. @Craig
      Fortunately, it does not matter in the least what their opinion might be. SCOTUS has no role in a Presidential impeachment – other than the Chief Justice’s presiding over the trial. There is no appeal. If the President is convicted by a 2/3 vote of the Senate, he is gone.

      With that said, under the Senate’s impeachment rules dating back 150 years or so, the Chief Justice can call witnesses. And they would have to appear unless the Senate overrules his decision. Roberts may soon find himself on a pivot point in history. The GOP can vote down THEIR calling witnesses, but voting to overrule the Chief Justice should HE call witnesses would be even harder to justify.

      Liked by 1 person

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